WESLEY, Circuit Judge:
Plaintiff-Appellant Natasha Davis brought claims of disability-based employment discrimination and retaliation against her former employer, Defendant-Appellee Bombardier Transportation Holdings (USA) Inc. ("Bombardier"). The United States District Court for the Eastern District of New York (Mauskopf, J.) granted Bombardier's motion for summary judgment, finding, in relevant part, that Davis's demotion-based claim was time barred. On appeal, Davis argues that the Lilly Ledbetter Fair Pay Act of 2009 applies to and revives this otherwise time-barred claim.
For the reasons below, the judgment of the district court is AFFIRMED.
Bombardier built and operates the Air Train, a computer-driven train that transports
On January 25, 2007, Davis went on disability leave for diabetic retinopathy. Davis underwent at least six eye surgeries during her leave. In August 2007, Davis notified Bombardier that she was prepared to return to work, and she submitted to a return-to-work physical. The parties dispute whether Bombardier routinely administered this physical to employees who had been on leave for more than 90 days. Bombardier informed Davis that she failed the physical and eye exams, but Davis contends she passed. Bombardier thereafter determined that Davis could no longer operate the Air Train in an emergency.
Davis then applied for two positions with Bombardier but was not hired for either. In both instances, Davis had poorer computer skills than the successful candidates and she received lower scores in most of the categories considered by Bombardier to be relevant for the positions. On September 5, 2008, Davis filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC"). Davis filed her federal suit on February 16, 2011. Following discovery, Bombardier moved for summary judgment. The district court granted Bombardier's motion for summary judgment on all of Davis's federal claims, and declined to exercise supplemental jurisdiction over Davis's other claims. Relevant to this appeal, the district court dismissed Davis's demotion claim as untimely because the demotion occurred more than 300 days prior to when she filed her EEOC charge of discrimination. See 42 U.S.C. § 2000e-5(e); id. § 12117.
On appeal, Davis principally argues that the Lilly Ledbetter Fair Pay Act of 2009 ("Ledbetter Act"), 42 U.S.C. § 2000e-5(e)(3)(A), applies to her otherwise
Under the Americans with Disabilities Act ("ADA"), it is unlawful for an employer to discriminate against a "qualified individual" on the basis of her disability "in regard to ... employee compensation." 42 U.S.C. § 12112(a). The ADA incorporates the Ledbetter Act, id. § 12117(a), which provides that:
Id. § 2000e-5(e)(3)(A). In short, this provision specifies that an unlawful employment action occurs when the discriminatory compensation decision or practice is adopted and when the individual is "subject to" and "affected by" the decision. Id. Davis is right that a compensation claim under the statute accrues not only at the time of the discriminatory decision but also with each paycheck the victim receives. See Schwartz v. Merrill Lynch & Co., 665 F.3d 444, 449 (2d Cir.2011). But that alone does not resolve her appeal.
We conclude that the Ledbetter Act does not encompass a claim of a discriminatory demotion decision that results in lower wages where, as here, the plaintiff has not offered any proof that the compensation itself was set in a discriminatory manner. A plaintiff must plead and prove the elements of a pay-discrimination claim to benefit from the Ledbetter Act's accrual provisions.
In early 2009, Congress passed the Ledbetter Act to overrule the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007). Lilly Ledbetter Fair Pay Act of 2009, Pub.L. No. 111-2, 123 Stat. 5 (2009). In Ledbetter, the Supreme Court found that the plaintiff's pay-discrimination claim, which was based on disparate pay rates between the
Justice Ginsburg, joined by three of her colleagues, dissented. She argued that, among other things, the "realities of the workplace" reveal why claims of discriminatory compensation should accrue when discriminatory wages are paid. Ledbetter, 550 U.S. at 649-51, 127 S.Ct. 2162 (Ginsburg, J., dissenting). Specifically, she stated that "[w]hen an employer makes a decision of [an] open and definitive character, [such as promotions, transfers, hirings, and firings,] an employee can immediately seek out an explanation and evaluate it for pretext." Id. at 649, 127 S.Ct. 2162. In contrast, pay levels — and, thus, pay disparities — are frequently concealed by both employers and employees. Id. at 649-50, 127 S.Ct. 2162. Congress agreed. In passing the Ledbetter Act, Congress overruled the Court's narrow interpretation of when compensation-based claims accrue. See Schwartz, 665 F.3d at 449. The Ledbetter Act's congressional findings section states: "The limitation imposed by the Court on the filing of discriminatory compensation claims ignores the reality of wage discrimination and is at odds with the robust application of the civil rights laws that Congress intended." Ledbetter Act, Pub.L. No. 111-2, § 2.
Turning to Davis's claim, we begin with the plain language of the statute. See United States v. Robinson, 702 F.3d 22, 31 (2d Cir.2012). The Ledbetter Act encompasses "discrimination in compensation," described as "discriminatory compensation decision[s] or other practice[s]." 42 U.S.C. § 2000e-5(e)(3)(A). These repeated references to compensation lead us to concur with the Third Circuit's assessment that "the plain language of the [Ledbetter Act] covers compensation decisions and not other discrete employment decisions," such as hirings, firings, promotions, and demotions. Noel v. Boeing Co., 622 F.3d 266, 274 (3d Cir.2010).
But the demotion decision here did also affect Davis's level of compensation. One might think that if the discriminatory act results in a loss of pay the demotion is in fact a part of a compensation decision. As this case makes clear, such an assumption is not always correct because a change in pay, standing by itself, is not sufficient to bring a claim within the ambit of the Ledbetter Act. In Ledbetter, the plaintiff sought to prove pay discrimination by showing that she was paid substantially less than her male colleagues. 550 U.S. at 622, 127 S.Ct. 2162; see also id. at 643, 127 S.Ct. 2162 (Ginsburg, J., dissenting). In her dissent, Justice Ginsburg explains that notice to the affected employee is a significant reason why discrete employment actions differ from pay discrimination. See also id. at 649-50, 127 S.Ct. 2162. Pay discrimination is often not obvious to its victim because many employers are not transparent about compensation levels; indeed, to state such a claim, an employee needs to compare his compensation to that of his co-workers. See id.
On the other hand, employees are put on notice of demotions, promotions, hirings, and firings by the nature of how those decisions are communicated. See id. at 649, 127 S.Ct. 2162. Employers will also communicate to the demoted employee any
The state of the law at the time the Ledbetter Act was passed further supports the distinct nature of pay-discrimination claims and pay reductions that occur with a demotion. See Lorillard v. Pons, 434 U.S. 575, 581, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978) ("[W]here ... Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute."). For example, in Taylor v. United Parcel Service, Inc., 554 F.3d 510, 522 (5th Cir. 2008), the Fifth Circuit noted that in order to state a claim for "discrimination in compensation" under Title VII, "a plaintiff must show that he was a member of a protected class and that he was paid less than a non-member for work requiring substantially the same responsibility." Likewise, interpreting the Age Discrimination in Employment Act ("ADEA"), the Eleventh Circuit developed a prima facie case for "age discrimination in compensation" that required the plaintiff to show that, among other things, "similarly situated persons outside the protected age group received higher wages." MacPherson v. Univ. of Montevallo, 922 F.2d 766, 774 (11th Cir.1991). We find these cases persuasive evidence of Congress's intent because the Ledbetter Act modified the ADA, Title VII, and the ADEA.
Here, after analyzing the Ledbetter decision, Congress's response to that case, and courts' interpretation of civil rights statutes that existed at the time Congress passed the Ledbetter Act, we conclude that Davis's claim falls outside the scope of the statute. Davis's attempt to salvage her time-barred demotion claim by virtue of a concomitant pay reduction is unpersuasive because her claim is based on the theory that she was demoted and paid less when she was still able to perform higher-paying work. Her claim is not that she was paid less than employees engaged in the same work because she was disabled. Davis does not dispute that her new hourly pay was the same as all other ATA I employees. The record evidence does not permit the conclusion that the Ledbetter Act's accrual provisions apply to Davis's demotion claim — her claim is untimely.
For the foregoing reasons, the judgment of the district court is AFFIRMED.